Having said so, having examined the well
reasoned impugned order, the Family Court has rightly
held that it had jurisdiction to entertain the
application and that the respondent-wife has made out
a prima facie case for grant of order in her favour.
That is how, the impugned order was passed by the
Family Court impugned in this petition.
Bombay High Court
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
WRIT PETITION NO. 5730 OF 2008.
Rajkumar Rampal Pandey
Vs.
Sarita Rajkumar Pandey
CORAM: V. C. DAGA, J.
DATED: 26. 08. 2008.
Citation: 2008(6)BomCR831
1. Rule, returnable forthwith. Heard finally by
consent of parties. Perused the petition.
2. This petition, filed by petitioner-husband
under Article 227 of the Constitution of India, is
directed against the order dated 29.7.2008 passed
below Exh. 10 in Petition No. A-113 of 2007 by the
Principal Judge of the Family Court, Bandra, Mumbai
whereby the petitioner, his mother, sister, other
relatives, servants and agents are restrained from
obstructing the respondent-wife to reside in a shared
household.
FACTUAL MATRIX:
--------------
3. The petitioner and respondent got married on
18.5.2001. The Petitioner is working as marketing
executive. Sometime in the month of February, 2004,
the respondent-wife joined the Petitioner and started
residing with him in the shared household. The
continuous acrimony between them resulted in
matrimonial discord, leading to divorce petition by
the husband on the ground of mental cruelty being
Petition No.A-113/2007 and criminal complaint under
Sections 498-A, 306 read with Section 34 of the Indian
Penal Code by the respondent-wife against the
petitioner-husband.
4. The respondent-wife moved an application
before the Family Court, Bandra under Section 26 of
the Protection of Women from Domestic Violence Act,
2005 ("the Domestic Violence Act" for short) to seek
declaration that she has a right to reside in the
shared house i.e. residential flat No.A- 102, "Om
Adarsh Co-op. Housing Society Ltd. Deonar," Gowandi
(hereinafter called the "subject-flat") and decree of
permanent injunction restraining respondent-husband,
his mother and relatives from evicting, dispossessing
and/or excluding the respondent-wife from the subject
flat is said to be a shared household.
5. The aforesaid application was opposed by the
petitioner-husband, on the various grounds, contending
that the subject flat is in the name of his mother.
The another flat situate at "Parnakuti, Chunna Bhatti"
is in the name of his grandfather, occupied by his
aunt and other relatives. In short, he denied his
interest in the subject-flat. He has also challenged
the maintainability of the subject application and
prayed for rejection thereof.
6. The Family Court, after hearing both parties,
was pleased to partly allowed the application with the
result the petitioner-husband and all relatives were
permanently restrained from committing any act of
domestic violence and in turn rejected prayer of
respondent-wife to prevent the petitioner’s mother and
sister from entering in the shared household.
7. Being aggrieved by the aforesaid order,to the
extent it is adverse to the petitioner, he has invoked
writ jurisdiction of this Court under Article 227 of
the Constitution of India as stated hereinabove.
RIVAL CONTENTIONS:-
------------------
8. The learned counsel appearing for the
Petitioner urged that the application under Section 26
of the Domestic Violence Act was not maintainable and
that the subject-flat cannot be termed as the shared
household. He submits that the petitioner’s father
was an employee of the Bombay Municipal Corporation as
a primary teacher. He formed one Co-operative Housing
Society under the provisions of the Maharashtra
Co-operative Societies Act, 1960 ("the M.C.S.Act" for
short). The Bombay Municipal Corporation was pleased
to allot one plot of land to the said Society. The
members of the said Society constructed tenements on
the said plot of land. The petitioner’s father was
one of the members allotted with one such tenement
referred herein as subject flat. He expired on
27.5.2001. After his demise, the subject flat was
transferred in the name of his widow i.e. the
petitioner’s mother being a nominee. He further
submits that the subject-flat stands in the name of
the petitioner’s mother as such subject flat cannot be
said to be the shared household. He further submits
that his mother is not a party to the proceeding in
the Family Court. As such, the impugned order could
not have been passed affecting her interest, that too,
behind her back. He further submits that the
Respondent comes from a rich family and that she is
not in need of residential accommodation. He further
went on to submit that the subject-flat has, now, been
sold by his mother vide sale deed dated 2.1.2008 to
one Mr Abdur Rashid Abdul Hakim. As such, no
injunction in respect of the subject-flat styling it
as the "shared household" could have been granted.
The petitioner has also filed an affidavit of his
mother wherein she is claiming to be the owner of the
subject flat and states on oath that she has
transferred, assigned and relinquished all rights,
title and/or interest in respect of the subject-flat
in favour of the purchaser and that she is not in
possession thereof.
9. The petition is strongly opposed by the
learned counsel for the respondent-wife and supported
the impugned order on facts and law both.
STATUTORY PROVISIONS:
--------------------
10. Before embarking upon the rival submissions it
is necessary to note that the Domestic Violence Act
was enacted on 13th September, 2005 to provide more
effective protection of the rights of women,
guaranteed under the Constitution, who are victims of
violence within the family and to deal with the
matters connected therewith or incidental thereto.
The purpose of the Act is to provide remedy in the
civil law for protection of women from being
victimised by domestic violence and to prevent the
occurrence of domestic violence to the society.
11. With the aforesaid aim and objects of the
Domestic Violence Act, now, let me turn to the
provisions of the Act relevant for the decision of
this petition.
Section 2 (s) "Shared household".
-------------------------------
"shared household" means a household where the
person aggrieved lives or at any stage has
lived in a domestic relationship either singly
or along with the respondent and includes such
a household whether owned or tenanted either
jointly by the aggrieved person and the
respondent, or owned or tenanted by either of
them in respect of which either the aggrieved
person or the respondent or both jointly or
singly have any right, title, interest or
equity and includes such a household which may
belong to the joint family of which the
respondent is a member, irrespective of
whether the respondent or the aggrieved person
has any right, title or interest in the shared
household."
SECTION : 19. Residence orders.
--------------------------------
(1)While disposing of an application under
subsection (1) of section 12, the Magistrate
may, on being satisfied that domestic violence
has taken place, pass a residence order-
(a) ..
(b) ..
(c) restraining the respondent or any of
his relatives from entering any portion of the
shared household in which the aggrieved person
resides;
26. Relief in other suits and legal
proceedings:-
-----------------------------------
"(1) Any relief available under sections 18,
19, 20,21, and 22 may also be sought in any
legal proceeding, before a civil court, family
court or a criminal court, affecting the
aggrieved person and the respondent whether
such proceeding was initiated before or after
the commencement of this Act.
(2) Any relief referred to in subsection (1)
may be sought for in addition to and along
with any other relief that the aggrieved
person may seek in such suit or legal
proceeding before a civil or criminal court.
(3) In case any relief has been obtained by
the aggrieved person in any proceedings other
than a proceeding under this Act, she shall be
bound to inform the Magistrate of the grant of
such relief."
12. Reading of the aforesaid provisions would go
to show that Section 26 provides that any relief
available under Sections 18, 19, 20, 21 and 22 can
also be sought in any legal proceeding, before a civil
court, family court or a criminal court, affecting the
aggrieved person and the respondent; whether such
proceeding was initiated before or after the
commencement of this Act.
13. It is, therefore, clear that a relief
available under Section 19 of the Domestic Violence
Act can also be claimed under Section 26 of the Act.
Section 19 (1) (c) provides that a court can restrain
the respondent or any of his relatives from entering
any portion of the shared household in which the
aggrieved person resides. Section 19 (1) (a) provides
that the order restraining the respondent from
dispossessing or in any other manner disturbing the
possession of the aggrieved person from the shared
household, whether or not the respondent has a legal
or equitable interest in the shared household, can be
granted.
CONSIDERATION:
-------------
14. Having heard both parties and having examined
the statutory relevant provisions, it is not possible
to accept the contention of the petitioner that the
application under Section 26 moved by the
respondent-wife, was not maintainable.
15. The contention of the petitioner that, the
subject-flat was owned by his mother, as such, the
petitioner had no right, title or interest in the
subject-flat and that the it has already been sold by
his mother under a sale deed, dated 2.1.2008 executed,
in favour of Mr Abdur Rashid Abdul Hakim, cannot be
accepted for the reasons stated hereinafter.
16. The learned counsel appearing for the
Petitioner was fair enough to produce the photo copy
of the sale deed dated 2.1.2008 executed by the mother
of the Petitioner for the perusal of the Court. The
said sale deed is not a registered document. It is
scribed on the stamp paper of Rs.100/-. It is
insufficiently stamped. It refers to a payment of
consideration by cheque dated 1.2.2008. However,
there is no material on record to show encashment of
the said cheque. Insufficiently stamped and
unregistered sketchy sale deed, without relevant
recitals, leads me to draw an inference that the said
deed is a bogus document of sale brought into
existence just to defeat the right of the present
respondent-wife and to get over the impugned order
passed by the Family Court. The alleged sale deed did
not extinguish the right, title and interest of the
vendor in the subject flat. Title did not pass over
to the alleged purchaser. The alleged sale deed is
inadmissible in evidence. The purported sale deed
dated 2.1.2008 does not create any right, much less
right, title or interest in favour of Mr Abdur Rashid
Abdul Hakim. As stated herein, the title still vests
with the original owner.
17. Now, let me examine the question: whether the
petitioner husband has any interest in the subject
flat so as to bring it well within the sweep of a
shared household?
18. The learned counsel for the petitioner has
produced the share certificate issued by the
Co-operative Housing Society in whose building subject
flat is located. The share certificate is in the name
of Rampal Rajaram Pandey i.e. father of the
petitioner (since deceased). With the death of Rampal
Pandey the said flat stood inherited by the Petitioner
and his mother with other legal heirs, if any. The
nominee does not become owner of the property.
Nominee holds property for the benefit of the heirs.
The petitioner’s son is one of the legal heirs having
interest in the subject-flat by virtue of inheritance.
He is not a party to the alleged transaction of sale.
Consequently, it has to be treated that he still has a
interest in the subject-flat. The subject-flat, thus,
can be treated as the shared household, wherein
admittedly, the respondent-wife lived in a domestic
relationship with the petitioner.
19. At this stage, it is relevant to mention that
during the course of hearing a misleading, rather
false, statement was made stating that the share
certificate issued by the Society was in the name of
the mother of the petitioner. The statement was
found, factually, incorrect. It is, thus, clear that
every attempt was made by the petitioner to defeat the
legitimate right of the respondent-wife.
20. Having said so, having examined the well
reasoned impugned order, the Family Court has rightly
held that it had jurisdiction to entertain the
application and that the respondent-wife has made out
a prima facie case for grant of order in her favour.
That is how, the impugned order was passed by the
Family Court impugned in this petition.
21. The learned counsel for the petitioner placed
heavy reliance on the judgment of the Apex Court in
the case of S. R. Batra and Anr v. Taruna Batra
(Smt) (2007) 2 Supreme Court Cases (Cri) 56. In the
said judgment the shared household was neither
belonging to husband - Amit Batra nor it was taken on
rent by him. It was not a joint family property of
which husband Amit Batra was a member. It was in the
exclusive possession of Appellant No.2, mother of Amit
Batra, hence, it was held that such an accommodation
or house cannot be called as a shared household. So
far as the case in hand is concerned, the
petitioner-husband has undivided interest in the house
after death of his father. His father died intestate.
Consequently, the flat was inherited by the
petitioner-husband along with other heirs. The
alleged transaction of transfer is nothing but a bogus
transfer brought about to defeat the claim of the
respondent-wife.
22. In the above view of the matter, the petition
is liable to be dismissed. In view of the false and
misleading statement made by the petitioner coupled
with the act of preparing a bogus document to defeat
the claim of the respondent mere dismissal of the
petition will not serve the ends of justice. The
petition is, thus, dismissed. Rule stands discharged
with costs quantified in the sum of Rs. 25,000/- to
be paid by the petitioner to the respondent-wife
within four weeks from today. Order accordingly.
(V. C. DAGA, J.) (V. C. DAGA, J.)
Print Page
reasoned impugned order, the Family Court has rightly
held that it had jurisdiction to entertain the
application and that the respondent-wife has made out
a prima facie case for grant of order in her favour.
That is how, the impugned order was passed by the
Family Court impugned in this petition.
Bombay High Court
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
WRIT PETITION NO. 5730 OF 2008.
Rajkumar Rampal Pandey
Vs.
Sarita Rajkumar Pandey
CORAM: V. C. DAGA, J.
DATED: 26. 08. 2008.
Citation: 2008(6)BomCR831
1. Rule, returnable forthwith. Heard finally by
consent of parties. Perused the petition.
2. This petition, filed by petitioner-husband
under Article 227 of the Constitution of India, is
directed against the order dated 29.7.2008 passed
below Exh. 10 in Petition No. A-113 of 2007 by the
Principal Judge of the Family Court, Bandra, Mumbai
whereby the petitioner, his mother, sister, other
relatives, servants and agents are restrained from
obstructing the respondent-wife to reside in a shared
household.
FACTUAL MATRIX:
--------------
3. The petitioner and respondent got married on
18.5.2001. The Petitioner is working as marketing
executive. Sometime in the month of February, 2004,
the respondent-wife joined the Petitioner and started
residing with him in the shared household. The
continuous acrimony between them resulted in
matrimonial discord, leading to divorce petition by
the husband on the ground of mental cruelty being
Petition No.A-113/2007 and criminal complaint under
Sections 498-A, 306 read with Section 34 of the Indian
Penal Code by the respondent-wife against the
petitioner-husband.
4. The respondent-wife moved an application
before the Family Court, Bandra under Section 26 of
the Protection of Women from Domestic Violence Act,
2005 ("the Domestic Violence Act" for short) to seek
declaration that she has a right to reside in the
shared house i.e. residential flat No.A- 102, "Om
Adarsh Co-op. Housing Society Ltd. Deonar," Gowandi
(hereinafter called the "subject-flat") and decree of
permanent injunction restraining respondent-husband,
his mother and relatives from evicting, dispossessing
and/or excluding the respondent-wife from the subject
flat is said to be a shared household.
5. The aforesaid application was opposed by the
petitioner-husband, on the various grounds, contending
that the subject flat is in the name of his mother.
The another flat situate at "Parnakuti, Chunna Bhatti"
is in the name of his grandfather, occupied by his
aunt and other relatives. In short, he denied his
interest in the subject-flat. He has also challenged
the maintainability of the subject application and
prayed for rejection thereof.
6. The Family Court, after hearing both parties,
was pleased to partly allowed the application with the
result the petitioner-husband and all relatives were
permanently restrained from committing any act of
domestic violence and in turn rejected prayer of
respondent-wife to prevent the petitioner’s mother and
sister from entering in the shared household.
7. Being aggrieved by the aforesaid order,to the
extent it is adverse to the petitioner, he has invoked
writ jurisdiction of this Court under Article 227 of
the Constitution of India as stated hereinabove.
RIVAL CONTENTIONS:-
------------------
8. The learned counsel appearing for the
Petitioner urged that the application under Section 26
of the Domestic Violence Act was not maintainable and
that the subject-flat cannot be termed as the shared
household. He submits that the petitioner’s father
was an employee of the Bombay Municipal Corporation as
a primary teacher. He formed one Co-operative Housing
Society under the provisions of the Maharashtra
Co-operative Societies Act, 1960 ("the M.C.S.Act" for
short). The Bombay Municipal Corporation was pleased
to allot one plot of land to the said Society. The
members of the said Society constructed tenements on
the said plot of land. The petitioner’s father was
one of the members allotted with one such tenement
referred herein as subject flat. He expired on
27.5.2001. After his demise, the subject flat was
transferred in the name of his widow i.e. the
petitioner’s mother being a nominee. He further
submits that the subject-flat stands in the name of
the petitioner’s mother as such subject flat cannot be
said to be the shared household. He further submits
that his mother is not a party to the proceeding in
the Family Court. As such, the impugned order could
not have been passed affecting her interest, that too,
behind her back. He further submits that the
Respondent comes from a rich family and that she is
not in need of residential accommodation. He further
went on to submit that the subject-flat has, now, been
sold by his mother vide sale deed dated 2.1.2008 to
one Mr Abdur Rashid Abdul Hakim. As such, no
injunction in respect of the subject-flat styling it
as the "shared household" could have been granted.
The petitioner has also filed an affidavit of his
mother wherein she is claiming to be the owner of the
subject flat and states on oath that she has
transferred, assigned and relinquished all rights,
title and/or interest in respect of the subject-flat
in favour of the purchaser and that she is not in
possession thereof.
9. The petition is strongly opposed by the
learned counsel for the respondent-wife and supported
the impugned order on facts and law both.
STATUTORY PROVISIONS:
--------------------
10. Before embarking upon the rival submissions it
is necessary to note that the Domestic Violence Act
was enacted on 13th September, 2005 to provide more
effective protection of the rights of women,
guaranteed under the Constitution, who are victims of
violence within the family and to deal with the
matters connected therewith or incidental thereto.
The purpose of the Act is to provide remedy in the
civil law for protection of women from being
victimised by domestic violence and to prevent the
occurrence of domestic violence to the society.
11. With the aforesaid aim and objects of the
Domestic Violence Act, now, let me turn to the
provisions of the Act relevant for the decision of
this petition.
Section 2 (s) "Shared household".
-------------------------------
"shared household" means a household where the
person aggrieved lives or at any stage has
lived in a domestic relationship either singly
or along with the respondent and includes such
a household whether owned or tenanted either
jointly by the aggrieved person and the
respondent, or owned or tenanted by either of
them in respect of which either the aggrieved
person or the respondent or both jointly or
singly have any right, title, interest or
equity and includes such a household which may
belong to the joint family of which the
respondent is a member, irrespective of
whether the respondent or the aggrieved person
has any right, title or interest in the shared
household."
SECTION : 19. Residence orders.
--------------------------------
(1)While disposing of an application under
subsection (1) of section 12, the Magistrate
may, on being satisfied that domestic violence
has taken place, pass a residence order-
(a) ..
(b) ..
(c) restraining the respondent or any of
his relatives from entering any portion of the
shared household in which the aggrieved person
resides;
26. Relief in other suits and legal
proceedings:-
-----------------------------------
"(1) Any relief available under sections 18,
19, 20,21, and 22 may also be sought in any
legal proceeding, before a civil court, family
court or a criminal court, affecting the
aggrieved person and the respondent whether
such proceeding was initiated before or after
the commencement of this Act.
(2) Any relief referred to in subsection (1)
may be sought for in addition to and along
with any other relief that the aggrieved
person may seek in such suit or legal
proceeding before a civil or criminal court.
(3) In case any relief has been obtained by
the aggrieved person in any proceedings other
than a proceeding under this Act, she shall be
bound to inform the Magistrate of the grant of
such relief."
12. Reading of the aforesaid provisions would go
to show that Section 26 provides that any relief
available under Sections 18, 19, 20, 21 and 22 can
also be sought in any legal proceeding, before a civil
court, family court or a criminal court, affecting the
aggrieved person and the respondent; whether such
proceeding was initiated before or after the
commencement of this Act.
13. It is, therefore, clear that a relief
available under Section 19 of the Domestic Violence
Act can also be claimed under Section 26 of the Act.
Section 19 (1) (c) provides that a court can restrain
the respondent or any of his relatives from entering
any portion of the shared household in which the
aggrieved person resides. Section 19 (1) (a) provides
that the order restraining the respondent from
dispossessing or in any other manner disturbing the
possession of the aggrieved person from the shared
household, whether or not the respondent has a legal
or equitable interest in the shared household, can be
granted.
CONSIDERATION:
-------------
14. Having heard both parties and having examined
the statutory relevant provisions, it is not possible
to accept the contention of the petitioner that the
application under Section 26 moved by the
respondent-wife, was not maintainable.
15. The contention of the petitioner that, the
subject-flat was owned by his mother, as such, the
petitioner had no right, title or interest in the
subject-flat and that the it has already been sold by
his mother under a sale deed, dated 2.1.2008 executed,
in favour of Mr Abdur Rashid Abdul Hakim, cannot be
accepted for the reasons stated hereinafter.
16. The learned counsel appearing for the
Petitioner was fair enough to produce the photo copy
of the sale deed dated 2.1.2008 executed by the mother
of the Petitioner for the perusal of the Court. The
said sale deed is not a registered document. It is
scribed on the stamp paper of Rs.100/-. It is
insufficiently stamped. It refers to a payment of
consideration by cheque dated 1.2.2008. However,
there is no material on record to show encashment of
the said cheque. Insufficiently stamped and
unregistered sketchy sale deed, without relevant
recitals, leads me to draw an inference that the said
deed is a bogus document of sale brought into
existence just to defeat the right of the present
respondent-wife and to get over the impugned order
passed by the Family Court. The alleged sale deed did
not extinguish the right, title and interest of the
vendor in the subject flat. Title did not pass over
to the alleged purchaser. The alleged sale deed is
inadmissible in evidence. The purported sale deed
dated 2.1.2008 does not create any right, much less
right, title or interest in favour of Mr Abdur Rashid
Abdul Hakim. As stated herein, the title still vests
with the original owner.
17. Now, let me examine the question: whether the
petitioner husband has any interest in the subject
flat so as to bring it well within the sweep of a
shared household?
18. The learned counsel for the petitioner has
produced the share certificate issued by the
Co-operative Housing Society in whose building subject
flat is located. The share certificate is in the name
of Rampal Rajaram Pandey i.e. father of the
petitioner (since deceased). With the death of Rampal
Pandey the said flat stood inherited by the Petitioner
and his mother with other legal heirs, if any. The
nominee does not become owner of the property.
Nominee holds property for the benefit of the heirs.
The petitioner’s son is one of the legal heirs having
interest in the subject-flat by virtue of inheritance.
He is not a party to the alleged transaction of sale.
Consequently, it has to be treated that he still has a
interest in the subject-flat. The subject-flat, thus,
can be treated as the shared household, wherein
admittedly, the respondent-wife lived in a domestic
relationship with the petitioner.
19. At this stage, it is relevant to mention that
during the course of hearing a misleading, rather
false, statement was made stating that the share
certificate issued by the Society was in the name of
the mother of the petitioner. The statement was
found, factually, incorrect. It is, thus, clear that
every attempt was made by the petitioner to defeat the
legitimate right of the respondent-wife.
20. Having said so, having examined the well
reasoned impugned order, the Family Court has rightly
held that it had jurisdiction to entertain the
application and that the respondent-wife has made out
a prima facie case for grant of order in her favour.
That is how, the impugned order was passed by the
Family Court impugned in this petition.
21. The learned counsel for the petitioner placed
heavy reliance on the judgment of the Apex Court in
the case of S. R. Batra and Anr v. Taruna Batra
(Smt) (2007) 2 Supreme Court Cases (Cri) 56. In the
said judgment the shared household was neither
belonging to husband - Amit Batra nor it was taken on
rent by him. It was not a joint family property of
which husband Amit Batra was a member. It was in the
exclusive possession of Appellant No.2, mother of Amit
Batra, hence, it was held that such an accommodation
or house cannot be called as a shared household. So
far as the case in hand is concerned, the
petitioner-husband has undivided interest in the house
after death of his father. His father died intestate.
Consequently, the flat was inherited by the
petitioner-husband along with other heirs. The
alleged transaction of transfer is nothing but a bogus
transfer brought about to defeat the claim of the
respondent-wife.
22. In the above view of the matter, the petition
is liable to be dismissed. In view of the false and
misleading statement made by the petitioner coupled
with the act of preparing a bogus document to defeat
the claim of the respondent mere dismissal of the
petition will not serve the ends of justice. The
petition is, thus, dismissed. Rule stands discharged
with costs quantified in the sum of Rs. 25,000/- to
be paid by the petitioner to the respondent-wife
within four weeks from today. Order accordingly.
(V. C. DAGA, J.) (V. C. DAGA, J.)
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